Road Traffic Bill, 1933—Committee Stage (Resumed).
Any member of the Gárda Síochána may request any person driving a mechanically-propelled vehicle or producing his driving licence at a Gárda Síochána station in pursuance of the next preceding section to sign his name in a book and with a pencil to be provided by such member and at the place in such book indicated by such member, and if such person on being so requested and on being provided with such book and pencil refuses or neglects to sign his name in such book or with such pencil or at the place in such book indicated by such member he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds.
I move amendment 27:—
Section 40. To delete lines 5 to 9 inclusive and to substitute therefor the words "and if such person being so requested and on being provided with a book and pencil refuses or neglects to sign his name in such book at the place indicated".
This section to my mind ought to be entirely recast, though the amendment does not attempt to do anything of that kind. If Senators will read the section they will be tempted to think that it emanated from Jimmy O'Dea or some other pantomimist. (Section read.) It is going to be a penalty for a man, on being asked to sign his name in a book, if he signs it with his own fountain pen. He must sign it with a pencil to be provided by the Guard. I think if the intention is to be very precise, it should say, “the pencil shall be duly sharpened by the Guard.” It does not do that. It does not say what kind the pencil is to be. If the person who is being requested to sign happens to be a sign-writer, he will assume that the pencil is a sign-writer's pencil, and not a lead pencil. In general the whole section seems to lend itself to derision and contempt. Seriously, I think the question has to be faced: what is the intention? I take it that the object of asking a man to sign his name is so that it may be compared with the signature on the driving licence. Surely it would be better, for the purpose of comparison, if the signature was written in some medium in which the signature of the driving licence was written. That is to say, if ink is available, and if the signature on the licence is an ink signature, it would be an advantage, for the purpose of comparison, if the signature requested by the Guards should also be an ink signature. But by this section we prohibit accepting a signature written in ink. My amendment wants to take away from the arrested person, or from the person being asked to sign his name, the excuse of saying that he has no pencil, or no pen. If he refuses, on being presented with a pencil, he will be guilty of an offence. It does not leave the section in such a way, that the person who is held up by a Guard must sign his name with a pencil to be provided by the Guard. I think that is bringing the statute into a certain amount of contempt. Another matter which does not arise directly from my amendment, but appertains to the section is this, and I put it to the Minister, that a Guard might utilise the section to compel a man driving a motor-car to put his signature to a blank cheque, in this way:—
Any member of the Gárda Síochána may request any person driving a mechanically propelled vehicle to sign his name in a book, and with a pencil to be provided by such member, and at the place in such book to be provided by such member, a blank cheque book, and, if he refuses to sign he will be guilty of an offence.
Of course, that shows the absurdity of the section as it stands. Really it ought to be recast, with the object of providing that the book, if it is in a Gárda station, should be a register. If a Guard is to be given the duty of holding up people on the roads, in order to examine licences, and to check the signatures with the licences, he should have a properly drawn up book for that purpose. I do not know why the device of photographs should not be used. But that is apart from this section. I hold that the section ought to be entirely recast, and made much simpler and more direct. Short of that my amendment wants to make it possible for a man to sign his name in the way he is accustomed to signing it, and, if he has a fountain pen, to sign with a fountain pen and to remove any excuse for refusing to sign on the ground that he had not a pencil or a pen. Certainly, as the section stands it seems to be very trivial and to be unnecessarily detailed. In the details it gives an opportunity for misuse by a Guard who might be a villain. Generally the section seems to me to leave itself open, not only to abuse, but to make a laughing stock of the whole statute.
I do not think the amendment proposed by Senator Johnson would have the effect that he wishes, when he says that he desires to make this section more direct and more explicit. If there is any fault to be found with the section as it stands, it is that it is so direct and so definite. The removal of the words that the Senator suggests would leave it vague and indeterminate, and might leave loopholes for all sorts of difficulties to be put in the way of the officer who desired to get the signature of an individual motorist he stops on a road or elsewhere. The point mentioned by the Senator, that some man might produce a sign-writer's pencil, is more against him that in his favour. That is the difficulty we want to guard against— people setting out to do freak things of that kind. I think it is just as likely that a Civic Guard will act with common sense, as it is that a motorist will act with common sense. Unquestionably, there are difficulties in the matter of getting signatures, but in order to prevent freakishness, and to make the thing as simple and as direct as possible, this wording was selected. It has been discussed by the officials in conjunction with the legal advisers, and the draftsman. Other wordings were suggested when the Bill was before the Dáil, but after discussion, the other amendments were generally withdrawn. We realise that it is a ticklish kind of section, and one that may raise difficulties. It is to prevent difficulties, and to make it as direct and as simple as possible, that the matter has been set down in detail in this fashion. If there is any common sense left in the country from the point of view of the Civic Guards or the motoring public, I think that the matter will work out simply enough.
The Minister's defence, a very common defence, is that one has to assume that a man will act with common sense. If men were going to act with common sense in every case, there would be no necessity for this Bill at all. It is to deal with people who are not going to act with common sense that these statutes are set up. My objection is to putting the ordinary civilian in the position of being an offender against a statute that is passed by the Oireachtas and liable to a penalty of £5 for preferring to sign his name with a fountain pen of his own rather than with a pencil provided by the Guards. That is the effect of the section and I for one object to putting into a statute, for which I have any responsibility, such a provision. If nobody else in the House has any feeling in the matter I am not going to force my opinions on the House but I have made my protest and I stand by the protest.
Amendment put and declared lost.
Sections 40 to 45, inclusive, ordered to stand part of the Bill.
SECTION 46, Sub-section (2).
(2) The following speeds shall be the ordinary speed limits for heavy motor vehicles of which all the wheels are fitted with pneumatic tyres, that is to say:—
(a) in the case of any such vehicle which is a large public service vehicle—
(i) if it is fitted with a floor for the seating of passengers the whole or any part of which is vertically above the whole or any part of another such floor, the speed of 20 miles an hour, or
(ii) if it is not so fitted, the speed of 35 miles an hour;
(b) in the case of any such vehicle which is not a large public service vehicle—
(i) when it is used for the traction of a vehicle of which all or some of the wheels are not fitted with pneumatic tyres, the speed of ten miles an hour,
(ii) when it is used for the traction of a vehicle of which all the wheels are fitted with pneumatic tyres, the speed of 20 miles an hour.
(iii) when it is used otherwise than for the traction of another vehicle, the speed of 25 miles an an hour.
I move amendment No. 28:—
Section 46, sub-section (2), to delete in line ten the words "thirty-five" and substitute therefor the word "thirty".
This amendment is intended to substitute a speed of 30 miles per hour for 35 miles per hour which is the rate set down in the Bill. I do not know whether in this connection I could quote a certain Dublin paper with approval but recently it had in its leading article some information in regard to the mortality arising out of motor accidents and it said that if as many cattle died from foot-and-mouth disease as children and other persons were injured in motor accidents, legislation to deal with the matter would not be delayed for a single week. It is idle to tell people like me that speed does not add to the danger of motoring. It does add to the danger. I have been in two motor accidents and I am happy to say that we were lucky enough on both occasions to be going slowly. I do not think I would be here to move any amendments if we had been going at a rate of 35 miles an hour. In addition much danger is occasioned owing to the vibration caused by heavy vehicles. We are dealing with heavy vehicles in this section. When these vehicles are travelling between walls and between buildings the danger in increased. I need not refer to the splashing of walls which is responsible for disfiguring many building in our cities and towns. I base this amendment entirely on the increased mortality arising from motor accidents and I ask the House to support it.
I desire to support the amendment and my only objection to it is that it does not go far enough. I think it would be wise for the Minister at a later stage to introduce a Government amendment to keep all motor driven vehicles down to a certain speed limit. Senator Dowdall has given an instance of the harm that is being done by high speed. I might say that the other evening I was standing in a field about 50 yards from the road when a four-ton lorry passed along travelling at about 30 miles an hour. At that point, 50 yards from the road, I could feel the vibration caused by that vehicle. Such a speed must be very injurious to the road, particularly to the foundation of the road.
I also desire to support the amendment. I live in the country close to a main road and my experience is, that having regard to the increasing volume of traffic, the speeds at which many motorists travel are highly dangerous. Now that legislation is being enacted to deal with traffic generally I think that we should endeavour to restrict the tendency towards increased speed and so ensure the safety of human lives and the protection of pedestrians. I think that the whole danger in motoring and the increased number of accidents have to be attributed to the speed at which many drivers travel and it is our duty to see that that danger is minimised. Like Senator Dowdall I had two or three very narrow escapes when motoring. I attribute that to the slow rate at which we were driving around bends in the road. If it had not been for the slow rate at which we were travelling, the car coming in the opposite direction would have smashed our car in pieces. There is a tendency even with buses to travel at an enormous speed. I went home yesterday evening on a bus and I am sure it travelled at not less than 40 miles an hour over a good portion of the road, but it was a good straight road. The tendency with bus drivers is to prevent any other vehicle passing them out with the result that there is a sort of competition between buses in speed. That is a tendency that should be stopped and buses should be compelled to reduce their speed wherever necessary. I heartily support the amendment.
I have great pleasure in supporting the amendment. Take a road such as that from Dublin to Dalkey. It is not by any means a straight road. There are a great many bends on it and it is very narrow in certain places. It would be positively dangerous for a vehicle of this kind to travel at 35 miles an hour on such a road. I think that a 30 miles limit is quite a moderate suggestion.
I also support the amendment. All the danger in this traffic is due to speed. There are times when it may be safe for a car to travel at a high speed but the danger arises when approaching a cross-roads. When I am approaching a cross-roads or coming on to a main road, I drive as slowly as I possibly can and I look in both directions along the main road to see if I have time to turn. If I see no other car approaching I proceed to turn but frequently other cars come upon me before I have turned although they were not in sight when I first looked. They are on top of me in the next minute because of the extraordinary speed at which they travel. Some of them travel not only at 30 miles but up to 35 and 40 miles. I have seen two buses and a car trying to pass one another on the road at the same time. There is then no room for any other vehicle to pass in the opposite direction. I think that is an extremely dangerous practice. I do not see any necessity for anybody to travel at a greater speed than 30 miles an hour. We were quite content to travel at seven or eight miles an hour in the old horse days. Now we want to jump up to 40 miles an hour and it is quite unreasonable.
I think this is a very necessary amendment both in the interests of human life and private property. I think many accidents occur because of fast driving and if we fix a high speed it would give great encouragement to young people to indulge in practices of this sort. I hope the amendment will be accepted.
I understand this speed limit applies only to heavy vehicles such as lorries.
I certainly think it would be highly dangerous to the public if these buses were allowed to travel at a rate of 35 miles an hour.
They travel at 40 miles per hour sometimes.
It is a blessing that they must regard that as an illegal speed.
It seems to me that inserting a speed of 35 miles requires a good deal of justification from the Minister having regard to the report of the Departmental Committee in which it was suggested that the maximum speeds for heavy motor vehicles, such as buses and chara-a-banc of the single-deck type, should be 25 miles an hour. The amendment suggests 30 and the Bill says 35. If the Inter-Departmental Committee saw justification for recommending a 25 limit, it would require a very good deal of argument from the Minister to justify 35 miles.
It seems that the whole House is against me on this amendment. Nevertheless I feel inclined to defend it. When the Bill was originally introduced two years ago a limit of 25 miles an hour was put into it. There was a considerable amount of discussion and the Minister at the time brought in an amendment and made it 35. After a very full discussion in the Dáil the 35-mile limit was accepted. They, of course, realised that the report of the Committee on which this Bill was founded recommended that 25 miles per hour should be the maximum for buses, but that was five years ago. I think motoring has speeded up considerably since that time.
So have deaths certainly, but not from bus accidents as far as the statistics go.
The Seanad is inclined to go slower than the Dáil.
That is what strikes me, that the Seanad, whether it be due to its wisdom or otherwise, is inclined to go slower than the Dáil in this matter. The point that appeals to me at the moment, making a defence for this, is that after all, if I may say so with all respect, every Senator has his own motor car and the bus is the poor man's motor car. He may require at times to travel at 35 miles quite as much as a Senator may like to travel at 50 miles. I hope I am not making a charge against any individual member of the Seanad, but I am sure that on occasions they have driven up to 50 miles per hour in their cars if only in an attempt to reach the Seanad in time for prayers. The section does not propose to allow buses to go at 35 miles an hour all the time. That is put in as a maximum. There are places and occasions governed by certain sections of the Bill where even 30 miles an hour would be regarded as a dangerous speed. There are regulations to prevent a man going at anything like 30 miles an hour. Take the Dalkey road to which Senator Bigger referred. That is one of the busiest roads in the country, and 30 miles an hour would certainly be a dangerous speed on it at certain times of the day. I am told that buses go at 40 miles an hour. I have heard, as Senator Counihan has suggested, they have done even a greater speed than that. On the whole I think that 35 miles an hour as a maximum would not be too much considering the very strict laws and regulations that will be made to govern certain areas and certain conditions of traffic. As I have said we have no special view on this beyond the consensus of opinion of the Oireachtas, but it does appear to me personally that 35 miles an hour, as a maximum, is not too great even for a bus.
In Dublin, for instance, buses are every day becoming more and more the medium of transport for great numbers of people at certain periods of the day for getting to their offices and to their homes. They are in great demand in the mornings and at dinner hour. A speed of 35 miles an hour would be dangerous in certain areas in and around the City of Dublin, but there are times, I think, when it should be allowed. It is unquestionable that when you have too high a speed the risks are very great, but I put it to the House that 35 miles an hour as a maximum for buses is not too great, considering that 50 miles an hour in the case of private motor cars on certain roads is quite common nowadays. Certainly, 40 miles an hour is quite common in the case of private motor cars. In view of the fact that a very big section of people in Dublin use buses nowadays and that we have speeded up in the last five years since this report on traffic was adopted and published, I think 35 miles an hour, as a maximum, would not be too great.
As the mover of the amendment I am in the unfortunate position that I do not possess a motor car, nor have I possessed one for the last seven years.
The Senator could have one if he wished.
But that in no way detracts from my fairly intimate knowledge of the numbers of accidents that arise from buses and motors. I am connected with insurance and I would like the Minister and his advisers—the information available would, I think, be a revelation to them—to make fairly minute inquiries into the rate at which motors can insure. I think the Minister will find that his 30 or 35 miles an hour, and what he said about speeding up, is not viewed with any satisfaction by the people who have to foot the bill in cases of accidents. In fact there are a great many motor companies that cannot get insured at all at present. The Minister tells us that we have speeded up in the last five years. I can tell him that we have speeded up in accidents, too. In view of that I intend to press the amendment.
The Minister said that 35 miles an hour was not an excessive speed. I want to point out to him that the average speed for many long distance trains—I am leaving out express trains—is 30 miles an hour. These trains run on an iron road with perfect safety. In view of that, I do not think buses should be allowed to go at the speed he mentioned.
Amendment put and declared carried.
Section 46 agreed to.
Amendment 29 not moved.
Section 47 agreed to.
SECTION 48.
I move amendment 30:—
Section 48, sub-section (4). To insert before the sub-section a new sub-section as follows:—
(4) Every speed limit imposed within any limits or place by regulation made under Section 9 of the Motor Car Act, 1903, and in force immediately before the commencement of this Part of this Act shall continue in force after such commencement and be deemed for all purposes (including offences and penalties) to be a speed limit within the meaning of this section and the regulation by which such speed limit was imposed shall be capable of being revoked or amended as if it had been made under this section.
This amendment is intended to render it unnecessary to go over again the proceedings that have already taken place where speed limits are arranged. It is intended to secure that they will be enabled to stand.
Amendment agreed to.
Section 48, as amended, agreed to.
Sections 49 and 50 agreed to.
SECTION 51.
(1) Every person who drives a vehicle in a public place at a speed or in a manner which, having regard to all the circumstances of the case (including the nature, condition, and use of such place and the amount of traffic which then actually is or might reasonably be expected then to be in such place), is dangerous to the public shall be guilty of an offence ....
I move amendment 31:—
Section 51, sub-section (1). After the word "place" in line 55 to insert the words "recklessly or."
This amendment seeks to insert the word "recklessly," so that the section will read: "Every person who drives a vehicle in a public place or at a speed or in a manner," and so on. The section as it stands does not use the word "recklessly." It says that "Every person who drives a vehicle in a public place at a speed or in a manner which, having regard to all the circumstances of the case... is dangerous to the public," and so on. I do not know why the word "recklessly" has been omitted. It is contained in the recommendations of the Committee and is in the existing law on the matter. To leave out the word "recklessly" modifies, I think, this measure detrimentally. I suggest it is wrong for a person to drive a car recklessly in any case, whether at a slow speed or at a high speed, and that it is not enough to say it is an offence to drive in a manner which, having regard to the circumstances of the case, is dangerous to the public. Reckless driving should be an offence. I may be met with the contention that if a car is driven in a manner which is dangerous to the public that is equal to being driven recklessly. I think that point is not a good one because to prove whether a car would have been dangerous to the public, driven in the manner in which it was driven, might be very difficult, whereas reckless driving should be an offence without having to prove that that the public was in danger. I make the point that a passenger even in a private motor car has to be considered. I question very much whether danger to a passenger in a private car driven recklessly would be covered by the term "danger to the public." I want to make it clear that if a car is driven recklessly it is an offence, and that if we leave out that word we are leaving it open for a car to be driven recklessly. I submit that the proof that it was dangerous to the public should not lie on the prosecution. A passenger in a private motor car, a friend of the driver's, might not be deemed to be a member of the public, and if the car is driven recklessly to the danger of that passenger there is no offence under the section as it stands. In the recommendations of the Committee, and in the existing law under the British Act, reckless driving is an offence and I think it ought to have been made an offence under this Bill.
I have the same object in view as Senator Johnson. When I read the section amended by the insertion of the words "recklessly or" I came to the conclusion that this would be an example which rather frequently occurs in legislation where a strong word weakens a section. If Senators will look at the section they will understand what I mean. The word "reckless" has a special meaning in the law, and for this reason that if a person by reckless driving injures another he becomes criminally liable. The section as amended by the insertion of the words proposed would, I submit, leave in the minds of the Tribunal construing the section that the legislature intended that the class of driving sought to be prohibited was driving which was in the nature of reckless driving because the phrase "at a speed or in a manner dangerous to the public" would be construed as being in pari materia with the word “reckless”. Taking the section as it stands, without the use of the word “reckless,” an offence is committed if the speed is such, or the manner of driving is such, apart altogether from speed, as to be likely to cause danger to the public. That leaves in the Tribunal a very wide discretion. The Tribunal can convict for an offence under that section although a man may not be driving recklessly. It is for these reasons that I think the use of the word “reckless” in this section would really defeat the object the Senator has in view. It is simply for that reason that I would be inclined to oppose this amendment, having the same object in view as the Senator, and knowing, as I do, the construction put on the word “reckless,” which brings this offence at once from the character of a civil wrong into the character of a criminal offence. Everybody knows that the evidence required in a case where a crime is imputed must be much stronger than in a case where merely a civil wrong is sought to be redressed. If the Senator would consider these matters he might not press that amendment.
I should certainly like to hear another lawyer confirming or otherwise the arguments made by the Senator who has just sat down. I can understand that kind of a case being made to a court by the Senator speaking in another capacity to prove that a man was not driving to the danger of the public although he may have been driving recklessly, if the section remains as it is, but he is not very convincing when I note the fact that other draftsmen, on more than one occasion in other parliaments have had this matter before them and have decided, time after time, that the word "recklessly" should be inserted. In the law as it stands and in the British Road Traffic Act, after quite a number of years' experience, they inserted these words:—
If any person drives a motor vehicle on the road recklessly or at a speed or in a manner which is dangerous to the public...
I have no doubt that they had all the legal considerations before them that the Senator has put before the House and yet, despite that, they re-inserted this word "recklessly" not believing that it was weakening the section. I am far from being convinced by the argument the Senator has raised. I think that, on the contrary, the section as it stands is distinctly weakening the existing law in regard to driving.
I do not wish the House to take any opinion of mine as having any validity except in so far as I urge reasons to support it. I am just an ordinary Senator speaking here and if I cannot give reasons for what I recommend I do not expect Senator Johnson or any other Senator to pay the slightest attention to what I may say.
The word "recklessly" was deliberately left out of this section by the draftsman and by everybody concerned. In our view, "recklessly" refers to a state of mind and it is difficult to prove the state of mind of the driver. It is difficult to prove that he was in a reckless state of mind. We have in the section everything necessary to prove that he drove in a manner dangerous to the public and that that would cover reckless driving. But recklessness in driving is a state of mind which is not easy to prove and it has led to a great many appeals in the British courts. It is in the British Act but we believe that our section is an improvement on the British section dealing with this matter and that it is more easy to prove "driving dangerously to the public." With regard to the point made by Senator Johnson, that a driver might drive to the danger of a person sitting in his car, if he was he would certainly be driving to the danger of the public and is covered by this section, but if he is driving recklessly somebody has got to prove it. We have put in the section enough to enable an officer of the law to prove that he drove to the danger of the public, in some way endangering life or property, but we claim that recklessness is much more difficult to prove and it would not be so easy to get a conviction as it would be under the section as we have set it out here.
I would draw attention to the fact that there is no speed limit now on a private motor car and, there again, if a man is driving at 70 miles an hour along a road with a passenger, a friend of his own, I am prepared to contend that the man is driving recklessly no matter how well fixed his mind is.
Would he not be driving to the danger of the public?
That would have to be proved. There may be nobody on the road.
I am inclined to take the same view as the Minister and the last speech of Senator Johnson has convinced me that the Minister is right, because the Senator says that driving at 70 miles an hour is driving recklessly. I think I am correct in stating, that, under the present law there is a speed limit which is not enforced in the strict sense of the word. It is already illegal to drive recklessly and we know quite well that the weakness has been that it is practically impossible to prove that a person is driving recklessly and the number of convictions has been very small indeed. When taking away the speed limit, it was necessary to provide some kind of offence which would not necessarily be a criminal offence, or of the same category, but which could be dealt with drastically. Senator Johnson's idea of driving recklessly is driving at 70 miles an hour, but I do not think he would be able to persuade everybody that that is driving recklessly. In the vast majority of cars, it would be driving dangerously to the public, without the slightest doubt. There may be, conceivably, cars and places in which that would not be driving to the danger of the public but, generally speaking, there would be no doubt that it is. My own feeling is that, if you leave the law as it stands, in regard to "driving recklessly" in the very few cases in which you can get convictions, you will get them, but the somewhat lesser convictions under this Act will be far easier than if you include the word "recklessly."
Amendment 31 put and declared lost.
SECTION 51.
(1) Every person who drives a vehicle in a public place at a speed or in a manner which, having regard to all the circumstances of the case (including the nature, condition, and use of such place and the amount of traffic which then actually is or might reasonably be expected then to be in such place), is dangerous to the public shall be guilty of an offence under this section and shall, on summary conviction thereof, be liable, in the case of a first offence, to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment or, in the case of a second or any subsequent offence, to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.
I move amendment 32:—
Section 51, sub-section (1). To delete in lines 56-59 the words and brackets "(including the nature, condition, and use of such place and the amount of traffic which then actually is or might reasonably be expected then to be in such place)."
I put this amendment down really to find out from the Minister what is the effect of the words in the brackets. When I put it down, I thought it weakened the section, but I have been told by other people that it strengthens it and, having read it three or four times over, I am not quite able to make up my mind as to what its effect would be by setting out particular circumstances, whereas there might be other circumstances that a court would take into consideration. I do not propose to press it, but I heard some discussion about it outside and I should be glad if the Minister will say what it means and the reasons for it.
This is a section which has received a very great amount of attention and, probably, more attention than a great many other sections in the Bill. The words in the section, which the Senator and Senator Sir John Keane propose to delete, are words that are in the law as it stands at the present and have been proved to be necessary. There have been many decisions on it and the law, therefore, is clear. We had it discussed in the Dáil by some distinguished lawyers, amongst them being one man who, both as a lawyer at the Bar and a justice on the bench, had done a considerable amount of work on this particular subject and in relation to this particular section— the late Deputy Finlay. My recollection is that he was very strongly in favour of allowing the law to remain as it stands as so many cases have been before the courts on the matter and it had been discussed so often and definite decisions by different courts had been given. Speaking from recollection, it was his view, as it was the view of others, also, that it would be better to leave the law as it stands.
I am much obliged to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 51 agreed to.
SECTION 52.
Every person who drives a mechanically-propelled vehicle in a public place while such vehicle or the machinery thereof is defective to such extent or in such manner that such vehicle is, when in motion, a danger to other persons and vehicles using such place shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds.
I move amendment No. 33:
Section 52. To delete in lines 17-18 the words "is defective to such extent or in such manner" and to substitute therefor the words "has a defect which such person knew of or could have discovered by the exercise of ordinary care and which is of such character."
As the section is drafted it makes it an offence to drive a mechanically-propelled vehicle with a defect even though the defect was hidden from the driver or owner and we propose to make it an offence only where it is a defect that could be discovered by the ordinary person.
I think that is a great improvement.
Amendment agreed to.
Section 52, as amended, agreed to.
SECTION 53.
(1) The Minister may by order make regulations exempting from any one or more specified provisions of this Part of this Act fire brigade vehicles, ambulances, and other special classes of vehicles and prescribing the conditions and limitations of any such exemption.
On the section, I should like to ask the Minister what is in his mind when he sets out the words "and other special classes of vehicles." Is there any definite kind in mind?
We have not in mind, as a matter of fact, any special class but the progress of mechanically-driven vehicles is such that we left that phrase in as a safeguard in case something might turn up.
Sections 53, 54 and 55 agreed to.
SECTION 56
(1) It shall not be lawful for any person (hereinafter referred to as the said driver) at any time to drive in a public place a mechanically-propelled vehicle unless either the said driver or the owner of such vehicle is at that time a vehicle insurer, a vehicle guarantor, or an exempted person or there is in force at that time either—
(a) an approved policy of insurance whereby the said driver or some other person who would be legally liable for injury caused by the negligent driving of such vehicle at that time by the said driver is insured against all sums without limit (save as is hereinafter otherwise provided) which the said driver or his personal representative or such other person or his personal representative (as the case may be) shall become liable to pay to any person (other than the excepted persons as defined in this Part of this Act) by way of damages or costs on account of injury to person or property occasioned by the negligent driving of such vehicle at that time by the said driver, or
(b) an approved guarantee whereby there is guaranteed the payment by the said driver or by some other person who would be legally liable for injury caused by the negligent driving of such vehicle at that time by the said driver of all sums without limit (save as is hereinafter otherwise provided) which the said driver or his personal representative or such other person or his personal representative (as the case may be) shall become liable to pay to any person (other than the excepted persons as defined in this Part of this Act) by way of damages or costs on account of injury to person or property occasioned by the negligent driving of such vehicle at that time by the said driver, or
(c) an approved combined policy and guarantee whereby all sums without limit (save as is hereinafter otherwise provided) which the said driver or his personal representative or some other person legally liable for injury caused by the negligent driving of such vehicle at that time by the said driver or the personal representative of such person (as the case may be) shall become liable to pay to any person (other than the excepted persons as defined in this Part of this Act) by way of damages or costs on account of injury to person or property occasioned by the negligent driving of such vehicle at that time by the said driver are covered as to part thereof by such driver or such other person being insured against such part of such sums and as to the residue thereof by the payment of such residue of such sums by such driver or such other person being guaranteed.
I move amendment No. 34:—
Section 56, sub-section (1). To delete in lines 20-21 the words "the said driver or the owner of such vehicle is at that time."
It has been found that, under Section 56 as drafted, a person who takes a car owned by an exempted person and drives without the consent of the owner would not commit an offence against the section. That is because the section excludes any car owned by a vehicle insurer, a vehicle guarantor or an exempted person. Under this section, a car is only excluded so long as any of these persons is responsible for damage caused by negligent driving.
Amendment agreed to.
I move amendment No. 35:—
Section 56, sub-section (1). After the word "person" in line 22 to insert the words "would be legally liable for injury caused by the negligent driving of such vehicle at that time."
The same point is covered by this amendment.
Amendment agreed to.
Amendment 36 not moved.
Question put: "That Section 56, as amended, stand part of the Bill."
This is the section dealing with the insurance of motor vehicles. I should like to ask the Minister whether he has had brought to his mind the question that the injured person, in the case of a motor accident, should be subrogated to the rights of the insured person, in other words that the insurance money should be available as a fund to meet the damages which the injured person sustains? My reason for mentioning the matter is this: Suppose an insolvent person is insured for, say £1,000 and he runs down another person and damages of £800 or £900 are awarded.
The £1,000 insurance is payable to the person who is insured. In case he is insolvent, his other creditors will come in and share in the amount of that insurance, so that only a poundage will be paid to the person who has been injured and who recovers damages. That, I think, is the legal position at present. I do not know whether the Minister can make any arrangement to rectify that. It has happened more than once that the person who got damages against another had not been able to recover the full amount of his damages, even though the person who caused the injury was insured. I have had some cases of that class myself, and there has been a curiously large number of cases in which that state of affairs has arisen. I think that that ought to be dealt with. This compulsory insurance is intended to be a protection to the public who are run down by reckless and insolvent drivers. It is no real protection so long as the other creditors of the person who causes the injury can come in and share in the amount of the insurance. I do not know whether it will be easy to remedy that state of the law. I am sure the Minister has considered it and endeavoured to make arrangements accordingly. I think that an effort, at least, ought to be made to remedy that position. It is for that reason that I call attention at the appropriate place in the Bill to what is, in many cases, a crying evil.
Cathaoirleach
On the Report Stage the Senator can attack that position.
I merely call the Minister's attention to it.
I should like to ascertain from the Minister if steps have been taken to deal with another problem arising out of insurance—that is, to meet the claims of people who have suffered loss by reason of accidents to themselves or to their breadwinners. The principle of compulsory third-party insurance has been introduced in this Bill, and I should like to know if any provision has been made for securing that, when a vehicle is insured, it is properly insured. A couple of years ago a dreadful accident occurred to a bus in Dublin. Some of the passengers lost their lives, while others were maimed for life. Not a single penny of compensation was paid to the dependents of those who lost their lives or to those who were injured. It transpired afterwards that the bus was insured but that the manner of insurance was not correct, with the result that the company with whom the insurance was entered into got off scot free.
I have been advocating for many years in this House and outside it compulsory third-party insurance for every mechanical vehicle. It is dreadful to contemplate that an accident may happen, through carelessness or otherwise, to one of these buses and that four or five breadwinners may lose their lives, leaving widows and orphans without any means of subsistence. The law should protect passengers and should secure that, under whatever policy of insurance has been entered into, compensation will be paid to those entitled to it. For those who may be maimed for life, there is what is known as "home help," but no decent, respectable, working-class man or woman wants to go through the procedure they have to go through in order to get home help. I admit there are tremendous difficulties in the way— that each individual is responsible for the insurance of his own vehicle—but some legislation ought to be introduced whereby an insurance company which issues a third-party policy should accept the risks attaching to it and that it should be their responsibility to see, when the car is being insured, that everything is in order with regard to the particulars. The Minister ought to consider this matter seriously. It is a very important point. I know the Minister is sympathetic to the point of view I have put forward. If the matter is not covered, I am satisfied, from what I know of the Minister, that he will take the necessary steps so far as the law permits to see that the necessary provision is made.
I think that the point raised by Senator Farren is dealt with in the Bill. I should like, however, the Minister to deal with the point in reply, because I want to get clear on the matter. Once the Bill becomes law, nobody can drive a car without having the certificate of an insurance company that he is insured as required by this Act. Is it clear that when an insurance company issues that certificate they will be liable for any damage caused to third parties notwithstanding any flaw that may subsequently be found in the insurance? That point is not as clear as it ought to be in the Bill.
The case I spoke of is well known in Dublin. The vehicle was insured but the person who insured the vehicle stated that it cost more than it really did, with the result that the insurance company got out of liability.
I think that the insurance companies ought to be pressed in regard to these matters. An insurance company insures the car at the original price—£200, £300 or £400. They go on charging the same amount year after year, while the value of the car has depreciated.
Cathaoirleach
Not if there has been no accident.
They go on charging the same price year after year, so that, eventually, the yearly insurance is more, perhaps, than the value of the car. If insurance companies are making large profits, the least they can do is to compensate those who have suffered by these third-party accidents. We ought not to be too favourable to these insurance people. They are making large sums of money and we ought to press them.
In reference to what Senator Douglas has said, I should like to be satisfied that the issue of the certificate will preclude the insurance company from making any legal objection to the validity of the insurance. I should be surprised to hear that that point has been as fully covered as it ought to be. I hope the Minister will elucidate the matter further. A policy is always issued subject to conditions. They are called "conditions of the policy". If these conditions are not fulfilled or if there is any fraud in reference to the particulars, insurance law, which is contained in a great number of statutes, protects the insurance company and prevents the recovery of the amount of the insurance. The law in regard to fraud on insurance companies and in regard to breach of condition in an insurance policy has been very strictly construed both on the civil side and on the criminal side of the courts. It is only a few days since we had a criminal proceeding against a person for giving fraudulent particulars and for breach of condition. Therefore, I think that the issue by an insurance company of a certificate that a car is insured would not be sufficient to bind the insurance company if the insurance were obtained by a fraudulent statement or if a condition of the insurance were broken. As the matter has been raised by Senator Farren and spoken to by Senator Douglas, it would be well that it should be set finally at rest. It can only be set finally at rest by making the insurance company which issues the certificate liable for the amount of the insurance.
The question which has been raised is bigger than it appears to be. An insurance company may be quite honest, it may not be attempting to get away from its liability by a side-wind or on a technicality, but it may not, in fact, have the resources to enable it to meet its liabilities. We are making it obligatory for drivers of motor vehicles to take out a third-party insurance, and we are requiring the insurance companies to make some kind of deposit. But I do not think that there is anything in the present proposals to give the insured person any real assurance that he will get the amount of the damages for which he has insured. We are assuming a private bargain between an individual insurer and an individual company. We are taking certain safeguards in regard to the company, but we are not making assurance double sure by providing that the company will be able to meet its liabilities. I know that this raises a much bigger question than the mere question of motor car insurance. I think the problem can only be solved by some kind of State guarantee of the capacity of the insurance company to fulfil the obligations it has entered into. An insurance company working within a narrow circle may believe that it is competent to deal with ordinary risks but the case referred to by Senator Farren—eighteen or twenty persons killed or maimed for life—represents a liability of an extraordinary nature which it may not be able to meet. I want to see that the insured person who has acted in good faith will get the amount he is entitled to even though the company has not carried out its ordinary commercial or financial business in a satisfactory way. I do not think that that can be done until the State steps in and either takes over liability or makes it obligatory on the companies to set aside certain sums which will cover their liability beyond any doubt.
Cathaoirleach
The Bill provides only for compulsory third-party insurance. The question of the capacity of the insurance company to pay does not arise, and I do not think we ought to go into it further.
The Bill provides for third-party insurance, but it is only third-party insurance against negligent driving. In the case the Senator had in mind, that occurred in the City of Dublin a couple of years ago, where a number of people were killed, negligence was not proved. That is the difficulty. If we were to insist that all the risks should be covered then the premiums would be out of all proportion. As a matter of fact the insurance companies refused to quote. It is only where negligence is proved under present conditions that we can impose compulsory insurance. Then as to the point raised by Senator Comyn, if insurance is obtained by misrepresentation or by fraud, and if that is proved, there is no insurance. The insurance company gets clear out of its liability in such a case. I think that should be so, if a person misstates the value of a car. We put down a limited value on a car or on property in the Bill. If persons misrepresent the facts when seeking insurance, I think it is only fair, where there is any fraud or misrepresentation of that kind, that the other parties to the contract—the insurance company—should get out of their liability.
And the injured person will get nothing.
The injured person would get nothing. We have had consultations with the representatives of the insurance companies of the Free State, and of companies doing business here from other countries, and we have impressed upon them that they must change their view point with regard to their responsibility, under the proposed law, and that when they insure a car they must take full responsibility. They have agreed to accept that view. On the other point that the Cathaoirleach mentioned, the responsibility for seeing that the companies are liable to meet their liabilities, to a certain extent that is covered by reason of the guarantees. A money deposit of £15,000 must be put down, and it is liable to be called upon.
Is it according to the amount of insurance?
No, it is limited to £15,000. If it was called upon up to 100 per cent. they would have to keep the deposit up to that. Difficulties have been put up regarding certain insurance companies here, Irish insurance companies, that find that difficult. Whether difficult or not they want us to try to meet them on the question of the deposit. Probably that matter will be discussed later. To the extent of £15,000 we have endeavoured to secure that at least that amount of money will be available for all time from the different insurance companies that propose to carry on business in this country in order to meet any liabilities.
Take the case of a man who gives fraudulent particulars to an insurance company. He is really not insured at all, because he got the policy by fraud. Is there no means by which there could be a criminal prosecution?
Certainly. The company can only get out of the liability if it prosecutes that man and proves him guilty. There are very severe penalties against that now.
It sometimes happens that while an insurance policy is in order the driver's licence may be out of date.
Senator Comyn raised a very important point. I would like the Minister to reply to it. The Senator referred to a case where an insurer is insolvent and where creditors can come along and claim the amount of the damages.
That is covered by Section 75.
Portion of the Minister's speech did not seem to me to be quite satisfactory, and I am not satisfied that it would not be possible, in strict fairness, to get the insurance companies to go somewhat further than the Minister stated. In this case we are dealing with third-party insurance. The difference in rates of insurance between third-party insurance and the value of a car is comparatively small. There is a difference in horse power and in the size of cars. In the case of value, I think the difference in the rate for a car valued between £200 and £300 is 2/6 or something small. I am only referring to the legal liability, where a company insures, in order that some onus might reasonably be put on them to satisfy themselves as to the essential facts.
There is misrepresentation and there is fraud. Fraud is a deliberate attempt to insure a Rolls Royce as though it was a Ford car, or something of that kind, to get the benefit of a much lower rate. Misrepresentation may be of a very simple character. I have not got an insurance form here, and it is some time since I filled one, but according to the regulations the Treasury rating has to be given, and the horse power to a recognised scale. It is very easy to make a miscalculation when stating whether the car was a 15.8 or a 15.9 or 15 or 16 horse power. I think I am correct in saying that some policies insist on a 15.8 car being treated as 16, while others treat it as 15. There can be misrepresentation of a simple character, and it would be outrageous, to use a mild word, if the insurance company could say that the policy was invalid. A car might cost £300, £400 or £500, but when insuring it is not insured at the cost price, but at the value at the time of insurance, which is a very problematical figure. Perfectly bona fide a wrong figure could be put down. If there is any loophole with regard to matters of that kind, the Bill would need strengthening. Where there is deliberate fraud there might be a case for the insurance company, but in a case of misrepresentation it is not sufficient to give the insurance company any kind of loophole.
In third-party insurance I do not think it would be unreasonable to provide that when issuing a certificate the insurance company should have made sufficient inquiries. Before it issues a policy an insurance company must have some regard for the person being insured. They do not take everybody. I have some experience that the general attitude of insurance companies, when dealing with a man of standing, and with a certain amount of reputation, is that they will know quite well that if £200 is put on a car when it is value only for £150, there is no harm done. There may be new insurance companies formed. Some of them may be weak. We ought to try to prevent anything happening. The Minister should see whether it would be reasonable to provide that when issuing certificates insurance companies should satisfy themselves on these matters. I thought the Bill covered that position, but the Minister's speech makes me doubt it. If not covered steps should be taken to see that it is.
Cathaoirleach
I hope Senators will not criticise insurance companies at this stage, because it would be irrelevant to do so.
I think I will do the opposite. I know from fairly intimate experience, regarding minor defects in proposal forms, such as those outlined by Senator Douglas, that no insurance company with any regard for its reputation could afford to deny liability in cases of that kind. Where an insurance company wished to vindicate a certain question of principle I have known it to fight a case and to succeed and then to pay. That was done merely to vindicate a principle. It will be found in practice, I am quite sure, when there is no deliberate fraud or misrepresentation, that no insurance company dare deny liability.
There is no great difficulty in the way of insisting, as far as third-party insurance is concerned, that the insurance company that issues a policy must accept responsibility. In third-party insurance a car is not being insured against loss, against fire or against damage. The insurance is against damaging a car, a person or property. The only thing the insurance company are entitled to ascertain is the reliability of the mechanical portions of the car. Surely, before insuring a car, the company should have it examined by an inspector to see if it is in mechanical order. I feel strongly on this point. We must protect the public. If the Minister looks into the matter between now and the Report Stage I think there will be no great difficulty in seeing, as far as third-party insurance is concerned, that the company which issues a certificate and accepts a premium must accept responsibility.
We have had consultations with the representatives of the insurance companies and we put this point to them. We found it impossible to draft a section covering the point which, at the same time, would be satisfactory to the insurance companies and under which they would agree to quote premiums. Up to the present they have refused to do so. We have put it to them, and they have agreed that they will have to undertake increased liabilities when this Bill is passed. We have failed so far to get them to agree to bind themselves, so that we could put it in the Bill to bind them to examine every car, and to make the position absolutely as watertight as we would like. They will refuse to quote any premiums accepting liability in that way. The points raised by Senator Douglas have been covered. I refer him to Sections 65 and 75 (1) (e). If the Senator looks at these sections before the Report Stage, if the points he refers to are not covered, I would be glad if he brought them up again so that there would be an opportunity of going into them. As far as possible we are anxious to have these points covered. In Section 75 (1) (e) we have tried to deal with it.
Such vehicle insurer or vehicle guarantor shall not, as a ground for refusing payment of moneys to the claimant or as a defence to proceedings by the claimant, rely on or plead any invalidity of such policy of insurance, guarantee, or combined policy and guarantee (as the case may be) arising from any fraud or any misrepresentation or false statement (whether fraudulent or innocent) to which the claimant was not a party or privy and which, if constituting a misdemeanour under this Part of this Act, was not the subject of a prosecution and conviction under the relevant section of this Part of this Act.
It is only when they get hold of a person that they believe acted deliberately and fraudulently, and when they prosecute that person, that they can get out of their responsibility.
Section 56, as amended, agreed to.
SECTION 57.
Question proposed: "That Section 57 stand part of the Bill."
On this section there are some matters that seem to be of considerable importance, and it depends on the explanation that may be given whether or not there should be an amendment on the Report Stage. I have been asked a question in respect to sub-section (1) which provides that where a person is convicted and another person is in court, the court may fine the convicted person and pay over to the injured person the amount of the fine by way of damages. The question is raised which I cannot answer: What locus standi has such a party to the parties, the prosecutor and the defendant, who are before the court? The second question is whether the provision in the Courts of Justice Act, 1924, setting a limit of jurisdiction in tort of £10 for the District Justice, is maintained by the section. Are damages limited to £10? The third question which is less a legal question than a mere layman's question, is whether in sub-section (2) where a default of payment has been made and the defendant is sent to prison, the liability for paying the fine by way of damages is annulled? Is the third party in this case going to be deprived of any chance of getting damages once the defendant prefers to go to jail rather than pay? In that case I suppose the third party will be very careful not to consent to the damages being inflicted by any court of summary jurisdiction. These are the three questions that are raised in this section, and they seem to me to be of some importance. Perhaps the Minister could throw some light on them.
The limit of jurisdiction under the Courts of Justice Act does not apply here. With regard to the position of the third party in this case, it is not damages that is inflicted; it is a penalty.
Can the penalty in such cases be paid over or must it not be paid into the Central Fund?
Paid over to the third party. It is a fine in lieu of damages.
I have not looked up this matter, but I think it is provided, constitutionally or otherwise, that moneys paid by way of fine have to be paid into the Central Fund.
I think sub-section (2) (b) covers that.
There is a constitutional point, I think.
The Senator wants to know whether the Constitution is overridden by the Bill.
That point is practically insoluble, because one Supreme Court held that any statute differing from the Constitution pro tanto overrides the Constitution.
The old Court of Appeal. The new Supreme Court seems to have the idea that the Constitution will override the statute. It is an insoluble question at the moment.
I hope the Minister will look into these points. I should like him to give a promise in that regard before we pass this section.
I have nothing more to say on the subject.
Question put and agreed to.
Sections 58, 59, 60 and 61 ordered to stand part of the Bill.
I move amendment No. 37:—
Section 62, sub-section (1). To add at the end of the sub-section a new paragraph as follows:—
(e) the period of cover is not capable of being terminated by the failure of a driver through inadvertence to renew a licence which has ceased to be valid because of the expiration of twelve months from the date on which it commenced or by such driver not being the holder of a licence by virtue of the provisions of Section 80 of this Act.
This amendment, I think, really explains itself. It is the subject matter in regard to which Senator Wilson is just about to become eloquent. It is an endeavour to provide that a policy cannot lapse by reason of the fact that a person has negligently failed to renew his licence, a subject on which every Senator seems to have a grievance.
This has not been covered specifically in the Bill but it is certainly a matter we have in mind to cover by regulation. Our deliberate intention is to prevent any insurance company getting away from its responsibility by reason of the negligence of a person in renewing his licence. We are quite satisfied that that will not be pleaded by an insurance company in order to get out of its obligation.
I am quite willing to postpone the amendment. We all know that it happens frequently where a driver is licensed that the licence lapses and he is unaware that it has lapsed until it was brought to his notice. I think that is a matter that is worth covering.
I do not think insurance companies would object to that provision.
There is quite a number of small points that would have to be covered. This is a relatively small point. If we set out to cover a number of points in the Bill and omitted others it might have a weakening effect on the Bill.
I shall not press the amendment.
Our point is that you will have regulations covering these points which we can alter from time to time. If there is any point forgotten we can put it in afterwards, but if we cover some of these points in the Bill and forget others, there will be a loophole in the Bill itself.
Amendment, by leave, withdrawn.
Sections 62, 63, 64, 65 and 66 ordered to stand part of the Bill.
SECTION 67—Sub-section (3).
No licence under Section 13 of the Finance Act, 1920, as amended by the Roads Act, 1920, and the Finance Act, 1926 (No. 35 of 1926), shall be issued by a licensing authority to any person in respect of a mechanically-propelled vehicle unless or until such person produces to such licensing authority a certificate of insurance or a certificate of guarantee issued to him in relation to such vehicle in respect of a period of cover which is unexpired at the date of the issue or of the commencement (whichever is the later) of such licence.
On behalf of Senator Robinson I move amendment No. 38:—
New section. Before Section 67 to insert a new section as follows:—
67.—The power of making regulations conferred by Section 12 of the Roads Act, 1920, shall extend and is hereby extended to include the making of regulations requiring a person applying for a licence under Section 13 of the Finance Act, 1920 (as amended by subsequent enactments) in respect of a mechanically-propelled vehicle to produce evidence or specified evidence showing either that such person is an exempted person or that when the licence so applied for comes into operation there will be in force an approved policy of insurance or an approved guarantee or an approved combined policy and guarantee covering the driving of such vehicle by such person or by other persons on his order or with his consent.
It will be seen from the following amendment that it is proposed to delete sub-section (3) of this section. This is one of the matters that has been looked into since the Bill was before the House, and it has been decided that on the whole it is more advantageous to deal with the question of linking up the licensing of the vehicles with evidence of insurance by way of regulations so as to enable every possible unforeseen difficulty to be met rather than leaving the position as in sub-section (3) of the Bill. The amendment also extends to the evidence to be furnished by an exempted person.
This meets a point which I raised on the Second Reading.
Amendment put and agreed to.
On behalf of Senator Robinson I move amendment No. 39:—
Section 67, sub-section (3). To delete the sub-section.
Amendment put and agreed to.
Amendments No. 40 and 41 not moved.
Section 67, as amended, ordered to stand part of the Bill.
SECTION 69—Sub-sections (1), (2) and (3).
(1) Any member of the Gárda Síochána may demand of any person driving a mechanically-propelled vehicle the production of either a certificate of insurance or a certificate of guarantee in respect of the driving of that vehicle by that person on that occasion and if such person refuses or fails to produce any such certificate then and there he shall, unless within five days after the date on which such production was demanded he produces such certificate in person to a member of the Gárda Síochána at a Gárda Síochána station named by such person at the time at which such production was so demanded, be guilty of an offence under this section.
(2) Whenever any person of whom the production of a certificate of insurance or a certificate of guarantee is lawfully demanded under this section produces such certificate but refuses or fails to permit the member of the Gárda Síochána making such demand to read and examine the certificate so produced he shall be guilty of an offence under this section.
(3) Whenever any person of whom the production of a certificate of insurance or a certificate of guarantee is lawfully demanded under this section refuses or fails to produce any such certificate or produces such a certificate but fails or refuses to permit the member of the Gárda Síochána making the demand to read and examine the certificate so produced or whenever any person produces such certificate at a Gárda Síochána station in accordance with the provisions of sub-section (1) of this section but fails or refuses to permit the member of the Gárda Síochána to whom such certificate is so produced to read and examine it, such member may demand of such person his name and address and if such person refuses or fails to give his name and address or gives a name or address which is false or misleading he shall be guilty of an offence under this section.
On behalf of Senator Robinson I move amendment No. 42:—
New section. Before Section 69 to insert a new section as follows:—
69.—A vehicle insurer, vehicle guarantor, or exempted person may at any time issue one or more certificates (each of which is in this Act referred to as a certificate of exemption) in the prescribed form in respect of any mechanically-propelled vehicle owned by him certifying that such vehicle is owned by him and stating the prescribed particulars in respect of his liability for injury occasioned by the negligent driving of such vehicle.
It was considered at one time that it was scarcely necessary to provide for a certificate of exemption but on further consideration it is thought not alone desirable but necessary to do so.
Amendment put and agreed to.
I move amendment No. 43:—
Section 69, sub-section (1). Before the word "in" in line 32 to insert the words "or a certificate of exemption."
This is a consequential amendment.
I move amendment No. 44:—
Section 69, sub-section (1). After the word "occasion" in line 23 to insert the words "or a certificate of insurance or a certificate of guarantee in respect of the driving of any mechanically-propelled vehicle by that person at any time."
This is the point to which I referred previously. If you are driving a car and produce a certificate to the effect that you are covered for any car at any time that ought to be sufficient for the Guard. It is not clear that this is met under Section 69.
I am advised that the amendment is unnecessary, that the words proposed to be added do not widen the sub-section. There is a danger that their insertion would make it ambiguous.
The sub-section states that the certificate shall be in respect of the driving of that vehicle. If your certificate is not in respect of the driving of that vehicle but in respect of the driving of another vehicle, is it clear that that is covered?
The amendment would make it more ambiguous.
I am not standing for the amendment. My only concern is to see that it is covered.
Amendment, by leave, withdrawn.
I move amendment 45:—
Section 69, sub-section (2) after the word "guarantee" in line 31 to insert the words "or a certificate of exemption."
This is a consequential amendment.
Amendment put and agreed to.
I move amendment 46:—
Section 69, sub-section (3), after the word "guarantee" in line 37 to insert the words "or a certificate of exemption."
Amendment put and agreed to.
Section 69 as amended ordered to stand part of the Bill.
SECTION 70—Sub-sections (1) and (2).
Mr. Robinson
I move amendment No. 47:—
Section 70, sub-section (1), after the word "terminated" in line 66 to insert the words "or suspended".
This amendment is to cover the possibility of a policy being suspended and not merely terminated. I think it is necessary in order to make assurance double sure.
Amendment put and agreed to.
Might I say that the draftsman has omitted to insert the words "or suspension" in the same sub-section after the word "termination"? I should like to have that amended also.
Cathaoirleach
That can be done on Report.
Mr. Robinson
I move amendment 48, which is similar to amendment 47:—
Section 70, sub-section (2). After the word "terminated" in line 7 to insert the words "or suspended."
Amendment put and agreed to.
Section 70, as amended, ordered to stand part of the Bill.
Section 71 agreed to.
SECTION 72.
(1) Whenever an event occurs in relation to a mechanically-propelled vehicle in consequence of which the vehicle insurer who issued an approved combined policy and guarantee or the principal debtor under an approved guarantee then in force in respect of such vehicle may become liable to pay money to any person, the person who is the driver of such vehicle when such event happens shall (unless he is himself the owner of such vehicle or the insured under such policy or combined policy and guarantee or the principal debtor under such guarantee or such event occurs in the presence of the owner of such vehicle) give to the owner of such vehicle, within 24 hours after the happening of such event, notice of the happening of such event together with full particulars thereof.
I move amendment 50:—
Section 72, sub-section (1). To delete in line 63 the words "within twenty-four hours" and to substitute therefor the words "as soon as practicable."
The object of the amendment is to try and prevent the section asking a person to do what may be impossible. In Section 71 dealing with a somewhat similar matter reasonable time is provided in the case of a driver to inform the owner. That, presumably, is because he may be seriously injured, but in the case where the owner happens to be the driver no such provision is made. I think 24 hours would not be reasonable in such a case.
Amendment agreed to.
I move amendment 51:—
Section 72. To add at the end of the section a new sub-section as follows:—
(3) The provisions of this section and the next preceding section relating to the giving of notice shall be satisfied by the posting of a letter within the required time containing the required particulars and addressed to the recognised address of the person to whom notice is required to be given.
It seems to me that it is desirable where, for instance, you have a bank holiday intervening to allow sufficient time to give notice to the insurance company. Most people will be covered by insurance companies, and most of these companies close their offices at one o'clock on a Saturday. The post is the usual way to give such notice, and I think it should be sufficient.
If the Senator agrees to leave the amendment over for Report Stage, I will bring in something on Report to meet his point.
Amendment postponed to Report Stage.
Section 72, as amended, agreed to.
SECTION 73.
Question proposed: "That Section 73 stand part of the Bill."
This section deals with the deposits that must be lodged by insurance companies who undertake to do this particular line of insurance work and who will be entitled to get certificates to the effect that they are solvent to carry on the insurance they propose to accept. It has been brought to my notice that the Bill as it stands is likely to prevent some of the Irish insurance companies from carrying on this particular type of business. The section provides that before an insurance company can get a certificate it must make a deposit of £15,000. If that be insisted upon I am told that some of the Irish insurance offices, who have not been doing a great deal of business in this particular line, will be severely handicapped. We are all agreed that the amount of money going out of the country for all classes of insurance is imposing a severe drain on the financial resources of the country, and that it is a matter that ought to be attended to. If the conditions I refer to are insisted on most of the Irish offices will be prevented from doing this particular class of business. In that event, instead of checking the flow of money from the country in connection with insurance business we will simply be increasing it. I do not want to boost any insurance company that is not prepared to meet its obligations. A company may be very wealthy, but under the 1909 Act it is only entitled to use the money received for a particular class of business in connection with that particular class of business. Some of the Irish offices have very large deposits in National Loan and in other Irish securities. These offices may not have been doing a very considerable portion of their business in motor vehicle insurance. It is practically a new business in this country. Some of the Irish offices have not been doing sufficient business in motor insurance to enable them, out of that particular branch of their business, to make this deposit of £15,000.
I have not put down any amendment, but I am just bringing this matter to the notice of the Minister. The object aimed at is to check the drain of money that flows from this to other countries in connection with insurance business, and to put the Irish offices on at least an equal footing with foreign companies, so that they will get a fair chance. I do not want to get anybody to insure with companies which will not be able to meet their liabilities. There are some companies, however, which, while perfectly solvent in all their other branches of business have not, because of the fact that they came late into the market, a great volume of this particular type of business, and not sufficient funds at their disposal out of it to meet the deposit of £15,000. I hope the Minister will consider the matter between now and Report Stage, and see if something cannot be done to safeguard the position.
That may be a hardship, but I think the chief matter to be considered in regard to insurance is that the company is solvent and able to meet its obligations. Subject to that I am sure the Minister will do everything he can to favour Irish companies. That is the main thing to be considered.
I do not think Senator Farren's speech will be of much assistance to Irish insurance companies if it goes out that they are not able to put down the amount specified as a deposit, so that they may be able to meet their liabilities if accidents occur. I think it would have been very much better if Senator Farren had not mentioned the fact that they are not able to meet this.
Senator Counihan has completely missed my point. What I said was that the Irish offices—I may say that I am not connected with any of them—ought to be entitled to get their share of this business. In the other branches of their business they are well able to deposit four or five times the amount specified, but under a special Act of Parliament they are only entitled to make, out of a certain branch of their business, the deposit required to cover that particular branch.
And if there was an accident they would not be able to pay the amount of the insurance.
The point that Senator Farren raises is one of considerable importance. We had this morning a considerable amount of discussion on the question of ensuring that companies will be in a position to meet their liabilities. After all, while it would be my personal wish and probably the wish of the House to do everything possible to encourage Irish institutions —industrial, commercial or any other kind—we will have to do that bearing in mind all the time our responsibility to the public at large. I am quite willing and would be enthusiastic to help any Irish institution, insurance companies or others, but as a Minister I certainly could not take responsibility for anything that would involve a risk to the public—that the liability of these insurance companies could not be met. If we could be satisfied that there is no danger or risk in that way, that the companies can meet their liabilities and that the public will be safeguarded— we are obliged under the Bill to secure the interests of the public—I will examine the matter and see what can be done. Up to a few days ago I had not found any satisfactory way out.
I am satisfied with the Minister's reply.
There is also the point of view that other branches of a company's insurance must also be secured. It would not be fair, for instance, that the funds of the life insurance branch should be set aside for the purpose discussed here.
Insurance companies cannot do that under the Act of Parliament.
Question put and agreed to.
SECTION 74.
I move amendment 52:—
Section 74, sub-section (1). Before paragraph (c) to insert a new paragraph as follows:—
(c) requiring exempted persons to keep records of all certificates of exemption issued by them.
Amendment agreed to.
Section 74, as amended, agreed to.
Sections 75 to 89, inclusive, agreed to.
SECTION 90.
(1) It shall not be lawful for a mechanically-propelled vehicle in respect of which no public service vehicle licence is in force to be used for the carriage of passengers for reward.
(2) The Minister for Education may, where he is satisfied that special provision for bringing children to a particular school is necessary, grant to the owner of a mechanically-propelled vehicle a licence to use such vehicle for the conveyance of children to such school for reward, and so long as such licence remains in force such mechanically-propelled vehicle shall not be a public service vehicle within the meaning of this Act merely by reason of its being used under and in accordance with such licence for the conveyance of children to and from such school for reward.
(3) Where—
(a) application is made by the owner of a mechanically-propelled vehicle to an officer of the Gárda Síochána not below the rank of superintendent for the issue of such permit as is hereinafter mentioned, and
(b) such officer is satisfied that a forthcoming event is likely to attract an assemblage of the public and that, having regard to the facilities available to the public for the transport of passengers to and from the place of occurrence of such event and to any other facilities capable of being procured for such transport, the issue of the permit so applied for is reasonably necessary or desirable, and
(c) such officer has given to the Minister for Industry and Commerce at least seven days' notice of the application for such permit and has received from that Minister no objection to the issue of such permit,
such officer may issue to such owner a permit to use such vehicle for the carriage of passengers for reward on a specified day from and to a specified place to and from the place of occurrence of the said event but subject to such conditions and limitations as such officer shall think proper to specify in such permit, and thereupon such vehicle shall not be a public service vehicle within the meaning and for the purpose of this Act merely by reason of its being used for the carriage of passengers under and in accordance with such permit.
(4) Where a mechanically propelled vehicle is used for the carriage of eight or more persons who are not in the employment of the owner of such vehicle, such person shall, until the contrary is proved, be deemed to be carried in such vehicle for reward.
(5) Whenever a mechanically propelled vehicle is used for the carriage of passengers for reward in contravention of this section the owner of such vehicle shall be guilty of an offence under this section and the driver of such vehicle shall, unless he proves that he did not know that no public service vehicle licence was then in force in respect of such vehicle, also be guilty of an offence under this section.
(6) Every person who is guilty of an offence under this section shall on summary conviction thereof be liable, in the case of a first offence, to a fine not exceeding twenty pounds or, in the case of a second or any subsequent offence, to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding three months or to both such fine and such imprisonment.
I move amendment 53:—
Section 90, sub-section (1). At the beginning of the sub-section to insert the words "Subject to the provisions of sub-sections (2) and (3) of this section."
This amendment is put in because I think it was omitted in the Dáil. If sub-sections (2) and (3) are to remain in there must be some amendment of sub-section (1), which provides: "It shall not be lawful for a mechanically propelled vehicle in respect of which no public service vehicle licence is in force to be used for the carriage of passengers for reward." There must be some proviso if we are to go on to say that the Minister may do the things provided in sub-sections (2) and (3), which are quite contrary to the intentions of sub-section (1).
I am accepting the amendment. Perhaps the Senator would allow me to amend it so that it shall read: "Subject to the provivisions of this section."
Amendment, as amended, agreed to.
On behalf of Senator Sir William Hickie I move amendment 54:—
Section 90. To delete sub-sections (3) to (6), inclusive.
I had a letter from the Senator asking me to move this amendment for him. The object of it is to delete from Section 90 the provision whereby passengers may be carried for reward on lorries on certain occasions. The intention, as disclosed in the debates on the section in the Dáil, is to facilitate lorry owners on Sundays to convey for reward people proposing to attend G.A.A. hurling and football matches. The lorry that conveys pigs, sheep, calves and manures on Saturday is to be permitted to carry passengers on Sunday. A lorry owner cannot possibly insure, even if he so desired, against third party risks where passengers are concerned, so that passengers so travelling are entirely unprotected. From a hygienic point of view, the proposal is a barbarous one, particularly at a time when there are greater passenger transport facilities than at any time in this or previous generations.
It might be asked how the patrons of the G.A.A. managed to attend football matches before lorries were made available to carry them. Anybody who has any experience of this traffic will admit passengers are, in the main, crowded into the lorries in a condition which is unsafe and indecent. The journey home, very often late at night, after the excitement of the day, is invariably not a very edifying spectacle. At a time when an attempt is being made to put all branches of transport on an ordered basis and when, with that object in view, very serious restrictions are being imposed upon the regular vendors of passenger transport, it is an amazing proposition to allow the owners of lorries to come along on the few days on which there is a fair amount of traffic passing and to "collar" that traffic for their own profits. During many days of the week the regular buses may be working at a loss, and surely these should be given the opportunity to try and make up their losses on the few busy days? They are required to pay reasonable rates of wages and observe reasonable conditions of employment, and yet they are to be ousted on special days by the owners of private lorries, who work under no such restrictions at all. In the absence of the Senator, who is a particular friend of mine, I have great pleasure in putting forward his views on this matter.
I am opposing this amendment. I am not very much impressed by the question asked in that statement as to how country boys got to football matches before motor cars were introduced. They used the ancient method of "shanks's mare." You might as well ask how people ate their meat before forks were introduced. The statement argues against a case which is not put forward in these sub-sections because the case put forward in these sub-sections is perfectly reasonable. The sub-sections set out:
(3) Where—
(a) application is made by the owner of a mechanically propelled vehicle to an officer of the Gárda Síochána not below the rank of superintendent for the issue of such permit as is hereinafter mentioned, and
(b) such officer is satisfied that a forthcoming event is likely to attract an assemblage of the public and that, having regard to the facilities available to the public for the transport of passengers to and from the place of occurrence of such event and to any other facilities capable of being procured for such transport, the issue of the permit so applied for is reasonably necessary or desirable, and
(c) such officer has given to the Minister for Industry and Commerce at least seven days' notice of the application for such permit and has received from that Minister no objection to the issue of such permit,
such officer may issue ...
The case is put that country boys may have to travel in a lorry in which cattle, sheep and pigs have been carried during the week. Is there anything wrong in that? Are not farmers and farmers' sons always feeding cattle and going into the byres? If the vehicle is dirty or insanitary, the officer of the Gárda Síochána will have the option of refusing this licence and, in regard to the injury that may be done to persons in the haulage trade, provision is made in this section to protect them also, because the licence cannot be issued unless the superintendent is satisfied that, owing to the circumstances of the case, there is not sufficient accommodation for the public. He must have regard to the facilities available to the public for the transport of passengers, so that the question of sanitary conditions can be left in the hands of the superintendent of the Gárda Síochána. The rights of the hirers of motor cars are sufficiently protected and country boys are enabled to have a lift in a motor car to a hurling or football match or to use a motor car, the modern method of conveyance, in substitution for the ancient method of progression which my friend, Senator O'Connor, and myself and others have resorted to in former times. We often walked many miles to a football or hurling match and I am sure we would have been very glad to get a lift. If there was a Ford ton truck, we would have been delighted to get a lift in it.
Country boys ought not to be legislated out of existence. Legislation should not be such as to make country boys hate the country. Let them have their innocent and healthy amusement, and let them have it free, if possible. There is, of course, provision here for the charging of something, but the amount usually charged is the price of the petrol. Sometimes they pay nothing and sometimes there is something given to the driver, but, inasmuch as the driver has likely enjoyed the sport, frequently he will not charge anything. I think that if Senator Sir William Hickie considered this whole matter in his usual large-hearted way, he would not press this amendment which, because of his illness and his consideration of the case at home, he was probably inclined to regard in too Puritanical a frame of mind. I think this is a very useful amendment for many reasons——
Cathaoirleach
Section, I should say. It enables boys to go to the sports field together, to come home together, and will ensure that no straggler is left behind so that, in every way, it is a great advantage to the public, and I think the Seanad ought not to pass this amendment.
I thought there was something to be said for this amendment, but I must confess that Senator Comyn has been more than usually convincing.
But there are some objections which were in the mind of Senator Hickie. We all know of some very deplorable accidents caused by no negligence. The deplorable accident to people returning to Tullamore after the Eucharistic Congress will be remembered. I would ask Senator O'Connor to ask Senator Hickie to look into the matter to see if preventable occurrences of that kind may not, in some way, be safeguarded, and I would suggest to the Senator that he should withdraw the amendment and raise the matter again on Report Stage.
Senator Comyn has spoken of our young days, when we had to walk to football matches, and I agree that we were very glad to use "shanks's mare" as the only means of progress available. I, personally, have always taken the greatest interest in our sports—my sons were All-Ireland champions in hurling and football—and, consequently, I am anxious to give all the assistance I can to them. That is why I have taken an interest in this amendment of Senator Sir William Hickie's. He is as much a sport as anyone, and he comes from a district, North Tipperary, where sport is proverbial. I do not think he has any intention of injuring these sporting gatherings. I had a conversation with him, and what he really wanted to avoid was the danger caused by overcrowding these lorries, which are not insured. He had in mind the safety of the people attending these meetings. Some of these lorries, of course, are made quite comfortable by the placing of rows of chairs in them, and I do not mind the people having their amusement provided there is no overcrowding or danger of accident. If accidents occur there is nothing for the people involved but sympathy.
Amendment, by leave, withdrawn.
I move amendment 55:—
Section 90, sub-section (3). To delete in line 35 the word "seven" and to substitute therefor the word "five".
Amendment agreed to.
Question put: "That Section 90 stand part of the Bill."
I want to draw the Minister's attention to the question of insurance in relation to these people who are passengers in an ordinary lorry covered by ordinary insurance. That insurance makes no provision for the carrying of passengers. It will be said that when a lorry is given by the owner for the carriage of boys to a football match, it is insured but the insurance company repudiates liability because the lorry is used for the carriage of passengers. In that case, the action would be against the owner of the lorry who, in many cases, is a man of straw. A fortnight ago, in the County Dublin, the owner of a lorry was involved in an accident, in which somebody was very severely injured. The insurance company will not pay the insurance and the owner of the lorry is unable to pay anything. When making provisions of this sort I think that some reference should be made to the position of the public.
Is it clear that a car, hired out for a day or two by a garage, say, to a tourist, is not a public service vehicle?
It might be held that they were conveying persons for hire. What happens is that tourists hire a car for a week or for two or three days. There is no doubt that they must be insured and I want to be quite clear that it is not a public service vehicle.
Section 90 agreed to.
Sections 91 to 123 inclusive agreed to.
SECTION 124.
(1) The Commissioner may make bye-laws in respect of the whole of Saorstát Eireann or any specified part thereof for all or any of the following purposes, that is to say:—
(a) requiring the owners, drivers and conductors of public service vehicles to deposit in an appointed place within a specified time property left in such vehicles by passengers therein;
(b) providing for the safe custody of such property and the re-delivery of such property to the owners thereof;
(c) providing for the disposal of all such property which is not redelivered to the owners thereof and, in particular, making special provision in regard to any such property which is a live animal or is of a perishable or offensive character;
(d) authorising the charging of fees for the re-delivery of such property to the owners thereof;
(e) providing, with the consent of the Minister for Finance, for the disposal of fees, proceeds of sale, and other moneys received by the Commissioner in respect of such property;
I move:—
Section 124, sub-section (1). After the word "property" in line 15 to add the words "including the payment out of such moneys of rewards to persons depositing such property in pursuance of this section."
This amendment is intended to make clear that rewards may be paid to persons who find lost property.
Amendment agreed to.
Section 124, as amended, ordered to stand part of the Bill.
Sections 125 to 143 agreed to.
SECTION 144.
(1) The Commissioner may, with the consent of the Minister, make bye-laws for the general regulation and control of traffic, including all or any of the following purposes, that is to say:—
(a) the classification of traffic;
(b) requiring all traffic to proceed along a specified side of the roadway either at all times or in specified circumstances or in specified places;
(c) prescribing the respective rights of priority of passage of different classes of traffic proceeding in the same direction;
(d) prescribing the respective rights of priority of passage of traffic proceeding in different directions, whether opposite or crossing;
(e) prescribing rules for the use of roads by different classes of traffic and in particular by pedal cyclists and assigning different parts of the road to different classes of traffic.
(f) prescribing the routes or courses to be taken by traffic turning at a junction of roadways from one roadway to another roadway;
(g) regulating and controlling the stopping of vehicles on roadways;
(h) regulating and controlling the driving on roadways of animals which are not ridden or led by any person nor harnessed or attached to any vehicle;
I move amendment 57:—
Section 144, sub-section (1). Before paragraph (h) to insert a new paragraph as follows:—
(h) regulating and controlling the conduct of vehicles in passing or meeting animals on the road.
I move this amendment because I know, from experience, the great danger caused by the increased traffic on the roads to cattle and sheep. I consider it essential that drivers of motor vehicles should exercise greater care and control when meeting cattle and sheep on the road. The increase in the volume of motor traffic is detrimental to the safety of live-stock and to obviate further damage to live-stock it is essential that greater control be exercised. When a vehicle does not slow up when approaching live-stock, it causes them to be frightened and, perhaps, to rush under the wheels, when they invariably get injured. I hold that it is essential that a motorist when meeting live-stock should allow an opportunity for them to be driven past. Time should be allowed when vehicles are passing stock to allow them to be driven out of the way. I wish to add a word about a matter mentioned by Senator Miss Browne, who is not present to-day. It is essential that people leading young horses should be allowed to ask the driver of a motor car or lorry to slow up in the event of a young horse showing signs of fright. They should be allowed to put up a hand as a sign to the driver of the vehicle to slow up and give them a chance of passing. The person with the horse should also be allowed to pass on the safe side—that is, between the vehicle and the horse. I know a good deal about the cattle and sheep traffic. Great impatience is sometimes shown by drivers of motor vehicles to those in charge of sheep and cattle. They seem to think that the stock are a nuisance on the road and that they should not be there at all. It should be compulsory on the driver of a motor vehicle to pull up when meeting cattle and sheep on the road. These cattle and sheep cannot be expected to have sufficient intelligence to move out of the way. They generally get scared or frightened. It is the business of the motorist to make way for them. After all, they have a prior claim to his.
At all events, cattle and sheep have been using the roads for a longer period than motorists and they should not be endangered by the impatience of motorists. I have no desire to be in any way hostile to motorists, but I certainly feel great hostility when I see them acting most unreasonably and driving, in a barbarous way, headlong through a flock of sheep or a herd of cattle. We ourselves had a herd of ten cattle on the road about a fortnight ago. A motor vehicle came along and hit one, with the result that it was killed. The owner of the vehicle paid for it, of course, but it is unreasonable that conduct of that kind should be allowed. It could be all obviated by pulling up in time. The factor of speed is the great factor in these matters. It is the wish of the majority of the people, and particularly of those using the roads for live stock, that cattle and sheep should be protected on the roads. I ask the Minister to look into the matter from the view-point which I have explained.
I am quite prepared to accept the principle of the amendment. If the Senator is willing to withdraw it, I shall bring forward an amendment on Report Stage.
I ask leave to postpone the amendment to Report Stage. I am obliged to the Minister.
Amendment postponed to Report Stage.
Sections 144 to 150 agreed to.
SECTION 151.
I move amendment 58:—
New section. Before Section 152 to insert a new section as follows:—
152. It shall not be lawful for any person riding a two-wheeled mechanically-propelled vehicle to take any passenger thereon.
This is an entirely different proposition from that with which I have just now been dealing. I ask the Minister to put a stop to any two persons making a habit of riding on a cycle. I have seen so many accidents that I consider the practice of two persons riding on these two-wheeled machines is highly dangerous. More deaths must have occurred from pillion riding than from any other form of motoring. These people almost take the sight out of your eyes by the speed at which they round bends of the road. When an accident does occur, it invariably results in the death of one of the parties, if not of both. In case of storm, the pillion riders are exposed to every chance of the elements. A son of mine, when he started cycle riding, went in for this practice, and I saw so many accidents that I was always uneasy while he was engaged in this habit. These bicycles skid very easily if the surface is greasy, and it is impossible to carry on pillion riding safely at a high speed. I consider it a kindness to the people concerned to put a stop to pillion riding. Let people ride singly as much as they please, but pillion riding should be ended.
Few men or women have a kinder heart than has Senator O'Connor. He showed his kindness towards cattle in a previous amendment. He shows his humanity now towards man. Having listened to Senator O'Connor, I am satisfied that he does not wish in any way to interfere with the legitimate enjoyment of any of our people. The reason he has put down this amendment is, I take it, to save man from himself and to prevent him from leading woman to destruction by pillion riding. Senator O'Connor has told us of the many accidents that occur by pillion riding. I happen to live at a place called Portmarnock, famous for many things, including its golf course and its many huts. Every Sunday in the summer I see dozens and dozens of these pillion-riding people going to the strand to enjoy themselves, during the past five or six years, and I have never known of a solitary accident. Accidents will occur in all sorts of sports, enjoyments and pastimes. We saw the other day a very sad aeroplane accident at our very doors and under our very eyes. Almost every day people are unfortunately killed or injured by motor cars and motor lorries. We have even experience of accidents by children falling out of perambulators. Even on the golf course—some of my golfing friends will bear me out in this—after an occasional visit to the nineteenth hole, your opponent has a tendency to "slice," and if you do not duck, and duck quickly, you are likely to suffer as a result. We have accidents in all lines of life. There is a very old saying which Senator O'Connor reminded me of: "There is no love like the first love." I was one of the first men in Ireland to ride a motor bicycle. While not wishing to appear to my friends around me as being a kind of Don Juan, I confess that on many and many an occasion I took my neighbour's daughter for a spin. I assure Senator O'Connor that I felt far happier——
I feel that there was less danger then, perhaps, than when I grew up and got a motor car or, perhaps, than there is in following the Ward Hounds, or going down the Mediterranean or the Mississippi or in boating on the Danube or flying from Paris to Berlin. There are accidents everywhere. Coming in here, one might slip on the carpet and break his leg. A young fellow who may not be able to afford the luxury of an aeroplane or a fleet of ponies may, by his industry, get together sufficient money to buy a motor cycle.
I think it would be particularly hard on many people if this amendment were passed. Take the case of a person living outside the city, when coming to business in the morning he would be prevented from carrying a pal, let it be a boy or a girl, into town. It is well, in my opinion, that a young fellow should be able on a summer's evening to take his wife, his daughter, his sweetheart or his mother-in-law out for a ride on a bicycle and to enjoy the fresh air. That is far healthier than going to the pictures, stopping on the backstairs of tenement houses, or even going to the parks. Senator O'Connor dropped into verse in support of his amendment. If I cannot sing a verse in the House I will quote one which was very popular in their youth. I am not suggesting that they should join in it now. Here goes.
"Daisy, Daisy, give me your answer, do,
I'm half crazy all for the love of you.
We won't have a stylish marriage
For we can't afford a carriage,
But you'll look neat on the seat
Of a bicycle made for two."
That was not a motor bike.
When Senator O'Connor considers the position of a young man living in a tenement I am sure he will not press the amendment. Senators are good sportsmen, although many people think they are bad politicians. At any rate Senators will not dare "to let Daisy down" by passing this amendment.
This is a very important matter, because we know that there has been a considerable number of accidents, not because of pillion riding but through reckless driving. I rode a motor bicycle for a few years and I carried passengers on the pillion seat. I never had an accident, because I was very careful in the management of the machine. I admit that there has been a considerable number of accidents with pillion riders, but I think it would be unjust to prevent a man carrying a passenger on the back of his bicycle.
It would not be pillion riding if a passenger was at the side. When passengers are carried at the side the machine becomes a three-wheeled vehicle. It would be unjust to legislate that a person should be prevented from carrying a brother, a sister or someone else's brother or sister, a wife or a daughter on the back of a motor bicycle. For that reason I will vote against the amendment.
Following on what Senator Farren has said I will quote from the report of the InterDepartmental Committee on the control and regulation of road traffic on this question:—
The question of the prohibition of pillion riding was raised at our public sittings and, from the views ascertained, we think that no case has been made that pillion riders are particularly dangerous to other users of the road and, in the circumstances, we do not feel that the matter requires special regulation.
Some Senator spoke of statistics. I wonder whether the figures referred to the danger to other users of the road, and whether there has been an excessive number of accidents in the case of pillion riders. Almost universally pillion riders are adults, and if they are prepared to take the risk I am not sure that we ought to legislate against it. I would have more sympathy, for instance, if there was an amendment to prevent a man taking a child in the front of a two-wheeled bicycle. The child is not a free agent. In the case of the pillion rider he or she is usually a free agent and, on the whole, unless there are very convincing statistics to show that the number of accidents to pillion riders is very great, and that the number of accidents to other users of the roads has increased, since the report was issued in 1928, I do not think a case has been made for prohibition, although such prohibition appears in the British Road Traffic Act of 1930.
There is no such prohibition in the British Traffic Act.
There is a restriction in the British Act dealing with the type of seat and things of that kind. I am afraid statistics bear out the statement that there has been a large number of accidents due to pillion riding. In the year 1932 the statistics show that there were 57 fatal accidents, three being on motor bicycles on which there were pillion riders, and two cases where cars drove into motor bicycles. There were three fatal accidents to pillion riders in 1932.
What was the total number of accidents?
71. In the Free State there are 5,668 motor cycles licensed, so that the percentage of accidents does not appear to be high. On the whole, I am with Senator O'Neill and Senator Farren in favour of the pillion rider. I think a case has not been made out for acceptance of the amendment.
After the Minister's statement I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sections 152 to 155 agreed to.
SECTION 156.
I move amendment 59:—
Section 156, sub-section (4). To insert before the sub-section a new sub-section as follows:—
(4) Every order made under Section 12 of the Roads Act, 1920, and in force immediately before the commencement of this Part of this Act prohibiting or restricting the driving of vehicles of any specified class on any specified road in any particular area shall, from and after such commencement, be deemed for all purposes (including offences and penalties) to have been made under this section and shall continue in force and be capable of revocation and amendment accordingly.
This is to enable orders already in existence to stand.
Amendment agreed to.
Section 156, as amended, and Section 157, agreed to.
SECTION 158.
(b) a red reflector in efficient condition and so fitted that when a light is impinging on such vehicle from the rear thereof such reflector is visible to a person in the rear of such vehicle and within a reasonable distance thereof, and
I move amendment 60:—
Section 158, sub-section (4). To delete in line 38 the word "impinging" and to substitute therefor the word "shining".
I do not know how a light impinges. It seems to me that lights usually shine, and that "shine" is a simpler word and more easily understood.
The word impinged there means that a rear light must go straight on the object.
The wording is a matter of taste. The Parliamentary draftsman has given considerable thought to this and has weighed up, from the legal sense, the value of different words. It is the considered view, from the legal point of view, that the word "impinging" is the better word to use.
Amendment, by leave, withdrawn.
Sections 158 to 161 agreed to.
SECTION 162.
(1) Every person who drives or uses or takes possession of a mechanically-propelled vehicle without the consent of the owner of such vehicle or other lawful authority shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.
I move amendment 61:—
Section 162, sub-section (1). To delete in lines 51-52 the words "drives or uses or takes possession of" and to substitute therefor the words "takes and drives away".
This is a much more important amendment. I take it that there should not be any question on the part of any member of the Seanad of the desirability of making "joy riding"—temporarily stealing a motor vehicle—an offence and the subject of severe punishment. I have never been able to understand the law which allows a person to take away a motor vehicle, almost with impunity. I think as the sub-section is drawn it goes much further than one desires. It does not include only a motor car. If it is an offence to use a motor lorry without defining what the use is, without depriving the owner of any power of the use or the enjoyment of his machine, I think the offence is a much milder one, if it is an offence at all. Members of the House who have taken part in a political campaign, know that they have taken the opportunity to use a motor lorry, which happened to be standing in a market place, to address a meeting, without the consent of the owner of the lorry. The use of the lorry for that purpose should not be subject to this penalty, which means a fine of £50, or six months' imprisonment. Therefore the offence aimed at here is included with a much milder offence.
The phraseology of my amendment is directed to the offence that everyone desires to put down, that is, taking and driving away motor cars. I am not going to be dogmatic but I feel strongly that to include the words "uses or takes possession of" makes the section much wider than is desirable. Take the words "or takes possession of." A motor garage owner takes possession of a vehicle from the person who brings it in. That person may not be the owner and may not have lawful authority, but the garage owner is going to be made amenable to the law by the sub-section as it is drafted, if he takes possession of a motor vehicle from any person who may have stolen a vehicle. He does that without guilty knowledge, but the very fact that he is liable under this section would make him very chary of taking possession of the car unless he was very fully convinced of the lawful authority of the person who drove it into his garage.
Sub-section (2) lets him off.
That is another matter. We shall deal with that a little later. The section is directed towards preventing a person taking a car and driving it away without permission. I think that it is faulty inasmuch as it goes too far, and the words which I have suggested seem to me to aim more directly at the offence which we desire to put down.
I do not know that a motor garage proprietor who receives a motor car into his garage could be said to take possession of it. There is no doubt that he would be in possession of it but I do not think he would be guilty of the offence mentioned in sub-section (1). As the Minister has pointed out, there is sufficient protection in sub-section (2). I do not know that any form of words could have been devised to meet the case of a man honestly in possession of a car which was not his property other than the words in sub-section (2). While paying every respect to what Senator Johnson has said and considering also the substituted words which the Senator proposes, I think that the section as drafted meets the case much more fully and reasonably than if the amendment were accepted.
What the Senator has suggested is that you should substitute for the words "drives or uses or takes possession of," the words "takes and drives away." I can imagine two or three loopholes in the Act if these words were inserted. Suppose a person intended to have a joy-ride in a motor car, went into a motor car before he drove it away and was captured. He would escape under that section. Senator Johnson's amendment would render necessary proof of two things—firstly, the taking, and, secondly, the driving away. I cannot help thinking that such a position as that must have been in the mind of the draftsman when he used the words which he has used. Notwithstanding what the Senator has said I feel that the section, which apparently has been considered in view of legal decisions in similar cases under other Acts of Parliament, has been very carefully considered by the draftsman and I would not feel happy in altering it.
Our view is that the words proposed to be substituted by Senator Johnson are defective, and would leave many loopholes. Suppose a person was found with a motor car the property of somebody else a considerable distance away from the place where the owner left the car and that a substantial time had expired, how is one to prove that he took that car? It would be very difficult to prove that the individual who was found in control of the car at the time, took the car. It is also doubtful what "driving away" would mean. How far would a person have to drive a car before he was deemed to have driven it away? If he had only gone ten yards would that be considered driving away? This is a type of offence which has grown considerably especially in Dublin and it is giving the Gárda a tremendous amount of trouble. I could mention half a dozen friends of my own whose cars have been taken away within the last few weeks. It is a type of offence that people commit very light-heartedly, but, nevertheless, it is a serious offence and it is one that I think we must take stern measures to deal with. I think it would not be wise to use any less strict words than are proposed in the section.
I can only say that the words in the British 1930 Act, which I have copied, are: "Every person who takes and drives away a vehicle without having the consent of the owner." I am not standing for that, but I am rather criticising the present phraseology as being too all-inclusive. I would lay more stress on the words "or uses" with which I shall deal in the next section.
Amendment, by leave, withdrawn.
I move amendment 62:—
To delete in line 51 the words "or uses."
I referred to the possible conviction for a very minor offence, if it is an offence at all, which might be obtained as a result of these words, "or uses." Every person who uses a motor lorry in a market place without the consent of the owner shall be guilty of an offence and liable on summary conviction to a fine not exceeding £50 or to imprisonment for any term not exceeding six months or both. A reference has been made to sub-section (2), but under that section the person in charge has to show that he believed or had reasonable grounds for believing he had lawful authority. I contend that he could not show that he believed or that he had reasonable grounds for believing that he had lawful authority under such circumstances. While he might be guilty of the offence of trespass, it could not be held that he was guilty of anything like the offence of stealing the car. If you keep these two words "or uses" in the section they widen the section so much that a person guilty of a very venial offence of trespass is guilty of the very grave offence of stealing and is subject to these very heavy penalties. I think the section is too wide and too stringent for such an offence. That is why I suggest that the words should be deleted from the section.
I could quite understand how disconcerting it would be to one who was in any way engaged in a peroration in the market place to be accused by the Gárda under this section. Probably it is something like that that Senator Johnson had in his mind. He may not be using, in the strict sense, a motor car, and the motor car might have been taken out of the yard of a political opponent. I can assure the Senator that the Gárda who would come forward and charge a politician under circumstances of that kind would be likely not to gain promotion thereby, because he would have been proved to have been an absurd person. I do not really think that under the sub-section he would be called upon to show that he had reasonable grounds for believing that he had a right to be on the lorry. Human language is imperfect. The law has to be administered in a reasonable spirit, and we have to trust to the officers of the law that they will not make it inconvenient for people who are reasonably using motor cars in that way.
Our position is that it might happen that a person would be found using a car that would be stolen. We could not prove that he had taken possession of it or how he had come into possession of it, but he was there using it. We must provide for cases in which a car would be found under these conditions. He does not take possession from the owner perhaps. He may have got it from a third, a fourth or a fifth person. We must provide that people who come into possession of cars must take the precaution to see that they are acting properly and that they do not use such cars unless they are satisfied that they can properly use such cars.
Amendment put and declared defeated.
I move amendment 63:—
Section 162, sub-section (2). To delete the sub-section.
I put this amendment down because I want to make sure that this section does not give a person who has stolen a car too great a liberty to get out of the consequences of his offence. When a person is charged with having stolen a car it would be a good defence for such a person to show that when he did the act—to show, to disclose, to reveal, as the dictionary says—that he believed and had reasonable grounds for believing that he had lawful authority for doing such an act. All he has got to do then is to persuade the owner of the car: "The penalty is very heavy and if you say the word then I can get off." I think that gives a loophole to the motor car thief to get out of the consequences of his theft. I might draw attention to sub-section (1) of Section 164 where there is a penalty provided for a man who interferes with the mechanism of a motor vehicle, but there is no sub-section in connection with that which gives him an opportunity of getting out of the consequences of his interference. I should like if the Minister would justify this sub-section because it seems to me to be too lenient to the thief.
I think we are entitled to justify the sub-section and not to be putting on the Minister the obligation of defending every word in this Bill. The word "show" is referred to by Senator Johnson and it is regarded as being synonymous with "make apparent." Senators must remember that it is only when the person is charged that he must "show." It would be a good defence to show that he had reasonable ground to believe that he was authorised. The word "show" in that sense means that he must make it apparent to the mind of the Tribunal. The only way he can do that is by some reasonable proof. Senator Johnson says, all he has to do is to get the owner to give evidence. The Senator indicates how serious the offence is. But if he could get the owner to give false evidence he would get out of any charge. I appreciate the public spirit of Senator Johnson in trying to make every one of these sections watertight. I repeat what I said earlier, that if you alter any part of Sections 1 or 2 you will injure the effect of the section. It is my firm belief that these sections have been fully considered and carefully drafted, and that they go as near to the truth and to what is in the mind of Senator Johnson as words can bring them.
I would ask the Minister to deal with this point. If this section is deleted, will it still remain for the defendant to prove to the court that he had no guilty motive in taking possession or using or driving a car which did not belong to him? It is common knowledge. Every person who is charged is in that position. When we put in a hint to the defendant "Now it would be a good defence for you to do so and so" it seems to me to be weakening the character of the section as against the stealer of motor cars.
The object of putting in the sub-section was to cover cases of a bona fide mistake. If it were not put in the judge would have no option or power under the Bill to take into consideration the fact that this individual may have honestly believed that, having got permission on a former occasion from this person to use his car, or that some friend of his had got such leave, he did not think it wrong to do so in this instance. He would not be able to make that plea, so that the magistrate would have no option, even where there was a bona fide mistake, but to make such a person subject to the full penalties of the law.
Amendment, by leave, withdrawn.
Sections 162 and 163 agreed to.
SECTION 164.
(1) Every person who, without the consent of the owner or the person in charge of a mechanically-propelled vehicle and without other lawful authority or reasonable cause interferes or attempts to interfere in any way with the mechanism of such vehicle while it is stationary in a public place or gets on or into or attempts to get on or into such vehicle while it is so stationary shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.
I move amendment 64:—
Section 164, sub-section (1). After the word "stationary" in line 36 to insert the words "with intent to cause inconvenience to the owner or driver or damage to the car."
This suggests that there should be a guilty purpose. The section provides that every person who, without the consent of the owner or without lawful authority interferes with the mechanism of a mechanically-propelled vehicle while it is stationary in a public place should be guilty of an offence. My suggestion is that mere interference, without any guilty intent and without doing any damage either to the car or inconvenience to the owner, is not an offence of the character indicated in the section, and that what is essential to the guilt should be intent to cause inconvenience to the owner or driver or damage to the car.
The difficulty in this case is to prove intent which would prevent the conviction of a person who did actually interfere with the car although not intending to inconvenience the owner. There is one thing missing probably, and that is something similar to sub-section (2) of 162. Otherwise, I think it would be better to leave the section as it stands. If the amendment is left over for Report that insertion can be made.
Amendment postponed for Report Stage.
Sections 164 and 165 agreed to.
SECTION 166.
(3) Every person who causes or permits any person employed by him or subject to his orders to drive a mechanically propelled vehicle of any kind (other than a fire brigade vehicle or an ambulance) or two or more such vehicles successively for an excessive period shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding five pounds.
(4) Every person who drives for an excessive period a mechanically propelled vehicle which either is a public service vehicle or is designed and constructed solely for the traction of another vehicle or is fitted with a body designed and constructed for the carriage of goods (other than passengers' luggage and effects) either in addition to or without passengers or two or more such vehicles successively shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding five pounds.
Amendments 65, 66, 67, 68, 69 and 70 deal with the one thing. The object is to remove from the section the owners of private cars. They are all included in the section. The drivers of all cars, whether owned by private persons, business cars or even the chauffeur to a doctor were limited to certain hours. We have decided to take out the provision dealing with private cars from the section, and all these amendments are necessary to do that.
I move amendment 65:—
Section 166, sub-section (3). To delete the sub-section.
Amendment agreed to.
Mr. Robinson
I move amendment 66:—
Section 166, sub-section (4). After the word "drives" in line 43 to insert the words "or causes or permits any person employed by him or subject to his orders to drive".
Amendment agreed to.
Mr. Robinson
I move amendment 67:—
Section 166, sub-section (4). Before the word "public" in line 44 to insert the word "large."
Amendment agreed to.
Mr. Robinson
I move amendment 68:—
Section 166, sub-section (4). After the word "constructed" in line 46 to insert the word "solely."
Amendment agreed to.
Mr. Robinson
I move amendment 69:—
Section 166, sub-section (4). To delete in lines 47-48 the words and brackets "(other than passengers' luggage and effects) either in addition to or without passengers."
Amendment agreed to.
Mr. Robinson
I move amendment 70:—
Section 166. To add at the end of the section a new sub-section as follows:—
"(10) Notwithstanding anything to the contrary contained in any other section of this Act, this section shall not apply to or in respect of vehicles owned by the State and used for military or police purposes or to or in respect of persons in the public service of the State driving vehicles so owned and used."
Amendment agreed to.
Section 166, as amended, agreed to.
Sections 167 and 168 agreed to.
SECTION 169.
Mr. Robinson
I move amendment 71:—
New section. Before Section 169 to insert a new section as follows:—
"169. Whenever a person drives a mechanically propelled vehicle with the consent (whether expressed or to be implied from the circumstances) of the owner of such vehicle, such person shall, for the purposes of determining the liability or non-liability of such owner for injury occasioned by the negligent driving of such vehicle by such person, be deemed to drive such vehicle as the servant of such owner, but only in so far as such person acts in accordance with the terms of such consent."
The present position is that the owner of a motor car is not liable for damage caused to third parties by the negligent driving of the car by some person other than the owner even though that person is driving with his consent unless it can be shown that the person is driving the car as the servant of the owner. Many motor insurance policies now in force purport to cover third-party claims arising from the driving of a car by persons other than the owner. Some policies cover all claims arising out of this driving whether the claims are against the owner himself or the driver. In many cases, however, the policy only covers claims against the owner himself. There are occasions when a car may be driven by a person with the owner's authority, and nevertheless no claim against the owner arises for the negligence of that driver because he cannot be held to be the servant of the owner. We are proposing here to make such person a servant of the owner for the purpose of the section so as to make the owner liable.
I think it would be well that on the Report Stage the Minister would fix a date on which this regulation would come into force. A man may have been in the habit of allowing a doctor to drive his car in certain contingencies, and the doctor may possibly not be able to make arrangements to get another car for some time. I would ask the Minister, in view of such cases arising, to allow a reasonable period before the regulation comes into force.
In the case of all these regulations a date has to be fixed and due notice given.
Amendment agreed to.
I move amendment 72:—
New section. Before Section 169 to insert a new section as follows:—
"169. Whenever the death of an infant under the age of sixteen years shall be caused by the wrongful act, neglect or default of a person using a mechanically propelled vehicle and the act, neglect or default is such as would if death had not ensued have entitled such infant to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages at the suit of the father or mother of such infant or the survivor, for the benefit of the parents of such infant or the survivor, notwithstanding the death of such infant and although the death shall have been caused under such circumstances as amount in law to an indictable offence, and in such action the father or mother shall be entitled to recover by way of compensation for the loss of such infant, notwithstanding his failure to prove pecuniary loss, such sum as the court shall regard as reasonable compensation for the past support and maintenance of the infant and the prospect of pecuniary gain from such infant and for the suffering of the parents and such compensation shall be apportioned between the parents if both are alive at the date of the hearing."
This deals with a very important subject, the question of compensation to the parents of a child who has been killed as a result of the negligence of a person driving a mechanically propelled vehicle. I understand the Minister is not prepared to accept this amendment to the present Bill. He is willing, however, that it should be fully debated. I am also anxious that it should be fully debated, but as the attendance is so small on the present occasion I do not propose to proceed with the amendment. I intend later with the assistance of the Minister to introduce a special Bill covering this whole subject. I, therefore, ask the leave of the House to withdraw the amendment.
Amendment, by leave, withdrawn.
Sections 169, 170, 171, 172, 173, 174 agreed to.
SCHEDULE.
Question proposed: "That the Schedule stand part of the Bill."
Could the Minister say what is the purpose of repealing Sections 4 to 15 of the Dublin Traffic Act, 1875? From my reading of the Act these sections have practically nothing to do with speed and traffic. They have very little to do with traffic certainly. I cannot find any justification for Sections 4 to 15 of the Dublin Traffic Act having anything to do with this Bill.
I am not in a position to deal with the Senator's question now, but if he raises it on the Report Stage I will have some information for him.
Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for June, 14th.
